A decision by mining giant BHP to ban unvaccinated workers from the biggest coalmine in the NSW Hunter region was made without adequately consulting employees and was not lawful or reasonable, the Fair Work Commission has ruled.
BHP announced in October it would make COVID-19 vaccination a condition of entry to its Australian sites and offices from January 31, 2022, excluding about 50 workers from the Mt Arthur thermal coalmine south of Muswellbrook from November 10.
The Construction, Forestry, Maritime, Mining and Energy Union represents the bulk of the 724 workers employed by BHP subsidiary Mt Arthur Coal that fall under its enterprise bargaining agreement.
They took Mt Arthur Coal to the Fair Work Commission, asking whether it was legal or reasonable to enforce the vaccination requirement as a condition of entry.
The FWC found Mt Arthur Coal did not act lawfully or reasonably.
A deciding factor was that the mine had not provided reasonable consultation with the workers.
The FWC notes in its judgement, delivered on Friday, that while the mine had the right to institute site access requirements, "consultation is an important component" of the decision-making process.
"It seems to us that the most telling factor against a finding that the site access requirement was reasonable is the failure ... to reasonably consult with the employees," the FWC judgement said.
The Australian Industry Group submitted to the Commission that Mt Arthur Coal had met its consultation obligations, but after the Commission disagreed, the group's chief executive Innes Willox said the case showed "the importance of employers consulting with employees before implementing mandatory vaccination requirements".
"The decision is not a repudiation of vaccine mandates by businesses," Mr Willox said.
The FWC's ruling acknowledged "employers face a difficult task in managing the risks for their workers in such a dynamic environment" as the one presented by COVID-19, but noted BHP made the decision independent of any public health order.
It's understood vaccination is still a condition of entry at Mt Arthur Coal while further consultation takes place, and BHP's national vaccination policy remains.
CFMMEU Northern Mining and NSW Energy District President Peter Jordan told AAP the FWC's decision "is a win for the rights of workers to be genuinely consulted about matters affecting them".
"BHP was arrogant in imposing its mandatory vaccination policy without genuine workforce consultation or the backing of a public health order," Mr Jordan said.
"We will continue to work through the detail of this decision and represent the interests of all our workers - especially those who have been stood down without pay as a result of this unlawful direction."
A spokesperson for BHP said the company noted the Commission's decision, "which acknowledges the risks presented by COVID-19 and has outlined that further consultation should occur".
"The science is clear that vaccination saves lives. BHP supports widespread vaccination as the path forward for the Australian economy," the spokesperson said in a statement.
"We are assessing the implications of the decision and will work with the commission, our people and union representatives to ensure our workplace remains as safe as possible for our people, their families and the community."
Australian Associated Press